Dret comparat i dret de família en el marc europeu

Ribot Igualada, Jordi
Text Complet
This paper firstly reviews the role of comparative law in the field of family law, and then links it with the case law of the ECtHR on Article 8 ECHR. As the court tackles conflicts involving the interests of individuals in a variety of situations, it tends to embark very often in a comparative analysis of the family law in force in a number of jurisdictions to ascertain the validity of the applicable laws and whether a margin of appreciation of the State exists. In addition, the court has deployed a dynamic interpretation of the convention to ensure that the rights recognized therein have a real and effective protection in a changing society. The similarities and differences in national legal systems, the awareness of possible common trends and the evolution of domestic legal systems, all helps to shape the obligations that the ECtHR derives from Article 8. Taking for granted that comparative law is the only possible methodology in order to construe the provisions of the convention, the only one providing for decisive arguments in its interpretation, easily justifies the criticisms of the legal scholarship that is challenging the developments brought about by the ECHR in the ambit of personal and family matters ​
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